TUTORIAL 4
PARLIAMENTARY SOVEREIGNTY
1. What is the meaning of ‘parliamentary sovereignty’? How does a ‘continuing view’ of
sovereignty differ from a ‘self-embracing’ view? What is the so-called ‘new view’?
Parl sov-politics can always trump law
No legal limit to laws it may enact; UK courts cant strike down/refuse to apply Acts
of Parl. (no external contstraints). No const. restrictions so cant act unconst. as its not
const. restrained.
Self embracing=power extends to destroying its own sov. Can pass law entrenching
leg. and it would be effective; parl. incapable of amending/repealing law so no longer
sov.
Cont. sov(closest that it coheres with Dicey)=cant be destroyed. Cant entrench leg.
(would detract authority of future parl. to do what they like). Wade-cannot entrench
leg view ‘ultimate political fact upon which the whole system of leg. hangs’.
HOWEVER WADES VIEW CRITICISED-1) historical explanation. 2) doesn’t mean
it cannot be leg. manipulated. 3)he argues parl cant impose limits on self but 2
examples where they do-European Communities Act (1972) parl said EU law takes
priority over UK law including Acts of Parl. AND Parl. Acts (1911-49) how can it
become Act of Parl without Lords’ approval.
‘New View’-parl is and should be capable of laying down binding conditions
concerning how and in what form legisl. is to be enacted but it isn’t and shouldn’t be
capable of tying future leg. hands as to what leg. they may enact. (i) parl can and
should be able to make it harder than usual for a given statute to be amended or
repealed but (ii) it cant and shouldn’t be able to make it impossible for any law to be
amended/repealed. Allows contingent entrenchment. Manner and form. Different to
self embracing.
Other notes: parl sov. and EU Law-position will change once UK’s withdrawal from
EU completed.
2. What was novel about the decision in Factortame (No 2)? To what extent is it compatible
with Dicey’s doctrine of Parliamentary Sovereignty?
UK parl enacted Merchant Shipping Act (1998) to protect British fishing industry by
preventing foreign nationals from exploiting British fish stocks. CJEU-nationality
restrict. incompatible with Art 49.
Lord Steyn deduced that Dicey's explanation 'can now be seen to be out of place in
the modern constitution'. Equally, Lord Hope refers to the Diceyan concept being
qualified step by step (including the Human Rights Act 1998 and the European
Communities Act 1972) and the rule of law being the supreme controlling factor on
which the constitution is founded. Against negative limb. Unique outcome-last time
courts disapplied law 1698. Instrumenting EU Law superior to domestic law; known
before Factortame but supports; courts don’t usually ignore Acts of Parl. Implied
repeal. Made Merchant Shipping Act in 1998 and EC Act 1972-novel, didn’t apply
even though it was most recent.
PARLIAMENTARY SOVEREIGNTY
1. What is the meaning of ‘parliamentary sovereignty’? How does a ‘continuing view’ of
sovereignty differ from a ‘self-embracing’ view? What is the so-called ‘new view’?
Parl sov-politics can always trump law
No legal limit to laws it may enact; UK courts cant strike down/refuse to apply Acts
of Parl. (no external contstraints). No const. restrictions so cant act unconst. as its not
const. restrained.
Self embracing=power extends to destroying its own sov. Can pass law entrenching
leg. and it would be effective; parl. incapable of amending/repealing law so no longer
sov.
Cont. sov(closest that it coheres with Dicey)=cant be destroyed. Cant entrench leg.
(would detract authority of future parl. to do what they like). Wade-cannot entrench
leg view ‘ultimate political fact upon which the whole system of leg. hangs’.
HOWEVER WADES VIEW CRITICISED-1) historical explanation. 2) doesn’t mean
it cannot be leg. manipulated. 3)he argues parl cant impose limits on self but 2
examples where they do-European Communities Act (1972) parl said EU law takes
priority over UK law including Acts of Parl. AND Parl. Acts (1911-49) how can it
become Act of Parl without Lords’ approval.
‘New View’-parl is and should be capable of laying down binding conditions
concerning how and in what form legisl. is to be enacted but it isn’t and shouldn’t be
capable of tying future leg. hands as to what leg. they may enact. (i) parl can and
should be able to make it harder than usual for a given statute to be amended or
repealed but (ii) it cant and shouldn’t be able to make it impossible for any law to be
amended/repealed. Allows contingent entrenchment. Manner and form. Different to
self embracing.
Other notes: parl sov. and EU Law-position will change once UK’s withdrawal from
EU completed.
2. What was novel about the decision in Factortame (No 2)? To what extent is it compatible
with Dicey’s doctrine of Parliamentary Sovereignty?
UK parl enacted Merchant Shipping Act (1998) to protect British fishing industry by
preventing foreign nationals from exploiting British fish stocks. CJEU-nationality
restrict. incompatible with Art 49.
Lord Steyn deduced that Dicey's explanation 'can now be seen to be out of place in
the modern constitution'. Equally, Lord Hope refers to the Diceyan concept being
qualified step by step (including the Human Rights Act 1998 and the European
Communities Act 1972) and the rule of law being the supreme controlling factor on
which the constitution is founded. Against negative limb. Unique outcome-last time
courts disapplied law 1698. Instrumenting EU Law superior to domestic law; known
before Factortame but supports; courts don’t usually ignore Acts of Parl. Implied
repeal. Made Merchant Shipping Act in 1998 and EC Act 1972-novel, didn’t apply
even though it was most recent.
